February 23, 2011

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Now, if they would just stop defending "Don't Ask, Don't Tell" against the Log Cabin lawsuit, people might start thinking that the administration is actually on our side instead of just getting tired of gay rights groups making them look bad.

Bear in mind that this doesn't mean DOMA won't continue to be enforced, at least for the time being. What it means is that the DOJ isn't going to spend any more time and money defending against the court cases that are trying to overturn it.

With the signing [at 2:00pm today], Hawaii becomes the seventh state to grant civil unions to same-sex couples without authorizing marriage itself. Five states and Washington, D.C., permit same-sex marriage.

What this means is challenges to the law, in the district courts are a lot more likely to prevail... because the language of this (as well as the District Court decision in Mass. last July) will be in the briefs against the law... and there will be no counterarguments before the bar.

When I saw this reported this morning, my reaction was that the administration had finally grown a spine. One of my colleagues pointed out to me that there were other issues where the administration was less, shall we say, upright. Still, this is a damgudthing.

Serge #11: Oh, you too? It wasn't that long ago, as lifetimes go that people like me (and my parents) were the threat to marriage. Now it's the desire of Ginger to regularize her relationship(s) that's evil incarnate.

I remind people who start screaming about the threat to marriage that my parents' marriage was illegal in the state wherein I live at the time when it was contracted. Somehow it managed to last into the 21st century. I, on the other hand, have been guilty of contributing to the divorce statistics (on the other hand, I also have two wives who plot against me so the net effect isn't all bad).

New Hampshire, on the other hand, may repeal same-sex marriage; the newly Republican legislature is keen on it. The governor will veto it, but after the 2010 election they may have a sufficient supermajority to pass it over a veto.

This poll suggests that a ballot measure wouldn't pass; marriage equality is fairly popular in NH. But I don't think they're planning on doing it by ballot measure. Legislators claim support because of passage of a nonbinding resolution in several towns supporting a future vote on repeal of the law, but that's not the same thing as supporting repeal outright.

This is of some personal interest to me, because I have family members in NH who might be affected. California grandfathered in already-married couples, but there's no guarantee that would happen there.

Serge@11, haven't you been helped by having politicians like Bill Clinton and Newt Gingrich defending your marriage, given all their expertise? I suppose I should thank them for picking such a blatantly obnoxious title for their law, because it made it easier to think about the issues clearly.

Fragano@12, I still wouldn't count the current administration as actual vertebrata yet - they're probably chordata, possibly even craniata, but their behaviour more often resembles our neighbors the hagfish than true vertebrates. But it's a good start, and maybe it'll occur to them that they can apply the Constitution to other civil rights issues as well. And a big Yay! for Hawaii, and a preliminary one for Maryland, with hopes that they'll follow through tomorrow in their full Senate and real soon in their Assembly.

There are People With Evil Tempting Intents hiding around every corner. Even Apple have been known to incite lust and clearly lust is the root of the erosion of the institution of marriage. Well, extra-marital lust, at least. And I don't think it's legal to marry a MacBook anywhere (or iPod or...).

Hm, I initially typoed "least" as "elast" and was half tempted to let that stand, as relative things are by their nature possibly-elastic.

Jim @ 29: a relative of mine used to work at an institution called Keele University. Before receiving its university charter, it was called University College Keele.

The story goes that the bureaucratic process that this involved was suddenly shortened when a senior administrator hit on the bright idea of awarding the senior civil servant involved the honorary post of Fellow of the institution.

Am I the only one who finds a little hope in the president's statement that his views on gay marriage are evolving? I grant, I wish he had started a stronger ally, but I like the idea that this is an issue he deems important enough that he's willing to think about it in some detail with an open mind to the possibility that his previously held convictions might be wrong.

I'm not... entirely able to convince myself that that statement is only shallow pandering.

I have regrettably mixed feelings about this. Yes, DOMA is pernicious/toxic, and I think it should be either repealed, or found unconstitutional by the Supreme Court.

Being (in some ways) terribly old-fashioned, I think I'm holding that it's the responsibility of the Administration to ...errrmmm... administer the laws enacted by Congress. We went through a period of Administrative overides a few years ago, with (IMHO) disastrous results, and I think it's dangerous to establish this as a Policy, if only because we might get, at some future time, another Republican Administration.

Don Fitch @ 37: It's a little more nuanced than that. They are still administering the Act, they are just declining to defend it against challenges to its constitutionality, having determined that it is likely to be unconstitutional. From Holder's letter to the House Speaker:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

My understanding of it is that it's one thing for the Executive Branch to execute the law, and another for it to vigorously defend it before the Judicial Branch. The Legislative Branch still has the opportunity to do so, if it desires, but the Executive Branch is signaling here that it believes there are serious questions about the constitutionality such that it doesn't feel it can present an adequate defense in court.

I don't have a strong opinion about how far the Executive branch should go on not enforcing laws, nor do I know how much variation in behavior there has been over the centuries. Things that are "clearly" unconstitutional maybe shouldn't be enforced (doing so is illegal; and generally rather evil as well); however that also makes it unlikely there would ever be a Supreme Court decision on the subject.

From casual observation, it seems that if one was going to defend marriage, it would be far more effective to block access to Craigslist casual encounters. That, or the more general, don't have affairs.

Don Fitch @ 37: But the administration is still going to carry on administering the law as it is written. What they are not going to do is actively defend DOMA in any civil lawsuits bought by the pro-marriage side.

With luck, this means DOMA will very quickly be found the unconstitutional piece of crap it is, but it does still depend on the outcome of individual lawsuits.

Perhaps I should re-read Holder's actual letter more carefully, but it sounds like the Justice Department is still taking the position that the law is defensible if circuit courts disagree with them about the scrutiny standard. If I understand the situation correctly, it sounds like they still might wind up defending the law in other circuits.

I work at Pacific University in Oregon, which in it's early days got into a pissing match with Portland State University (then just Portland University) over who got to call themselves PU. Portland University won that one, bless them.

I'm not impressed by Obama's "stand" here -- he seems to be saying that while if someone else wants to do the actual work of getting it overturned, well then he won't stand in their way. Probably. But he certainly won't stand up and say "this is just wrong, and it needs to stop now". Not about this... for that matter, has he said that about anything that the USA is doing? (Doesn't count if he's deploring what Those Nasty Folks Across The Ocean are doing.)

It's worth noting that if the current administration ceases enforcement of DOMA completely, that means no further court cases challenging it (because it's very difficult to gain standing as a plaintiff when the law's not enforced). I understand there are cases currently in progress, but again ceasing enforcement would make those cases less urgent and could potentially cause trouble on appeals. (I suspect the Supreme Court is somewhat more likely to hear cases about ongoing problems than ones exclusively in the past tense).

That'd mean it remained on the books and ready for a future Palin, McCain, or Scudder administration to enforce.

Continuing to enforce the law may be partly a tactical choice meant to encourage judicial action.

(There are unenforced laws that stay on the books but are very stupid, of course: Here in Seattle it is illegal to carry a fixed-blade knife, full stop. That time you bought some kitchen knives and carried them to your car? Breakin' the law, son! Open carry of a shotgun? Fine. Concealed handgun? Permits ain't hard to get. Sheathed 2" fixed blade or 3.6" folder? Totally illegal, with no possibility of permits. But that's not a law that's very likely to be struck down, as it is obviously stupid but non-obviously unconstitutional, and it's usually sensibly enforced.)

"The president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation," said Michael Steel.

"...versus three months before the 2012 election, which is when we had planned to stir it up, as part of energizing our base. Now it's likely the issue will be dead by that time, giving us no way to politically profit from it."

Not to mention that Mr. Steel's job is speaking on behalf of Speaker of the House John Boehner, whose party hasn't introduced anything controversial at all in the six weeks or two months since it's been in power in the US House. Nope, nothing, well, other than defunding Planned Parenthood, repealing the Affordable Care Act, and introducing the No Taxpayer Funding for Abortion Act, the Birthright Citizenship Act, the Free Industry Act (that one says that the EPA can't regulate greenhouse gases, no matter what the Supreme Court said last term), the Internet Freedom Act (says Congress can regulate the Internet, the FCC can't) and more.

Don Fitch and ddb: The thing is, we know that current-era Republican administrations pay no attention to precedent, and if anything are more likely to do something because they think it will annoy liberals. We can conceive of conservative administrations who'd take a precedent of center/liberal restraint seriously, but they're not around and won't be for multiple election cycles, at a minimum.

We should all feel free to skip forward to the question of what is a sane, moral, desirable approach to policy given a sane, moral, desirable reading of the law.

David Harmon @47, do you realize that the Executive Branch is the one that doesn't actually have the power to overturn laws? I know people who argue that Obama's already gone too far -- that the Executive has the same obligation to defend the Legislature's laws that a Public Defender has to defend a client, even one that he knows is guilty.

b. The Obama administration has used just that argument in the past, w.r.t. DOMA and many other laws.

c. There's pretty much no way to make this into anything but a political decision that ignores the previous claims of principles.

d. Despite all that, this is likely very good news in terms of moving practical policy in a good direction.

More generally, I get the complaint that most Republicans only seem concerned about a too-powerful executive when there's a (D) behind his name. But I have to point out, while the Democrats haven't been as bad in that regard, they've been awfully damned accomodating of Obama's continued executive overreach. The pot isn't *quite* so sooty and black as the kettle, but it's far from clean....

albatross @ 60... The pot isn't *quite* so sooty and black as the kettle, but it's far from clean....

...but it certainly is less filthy, and less in need of heavy-duty steel wool. That being said, if I were a thin-skinned person, I'd assume that you post says "Democrats are almost as bad as the GOP", but, as my hide is like Ben Grimm's, I'll laugh at such an interpretation.

... I don't know about anyone else, but in my civics classes, they made a pretty big deal about how the executive's ability to neglect or refuse to enforce the laws was one of its legitimate checks on Congress, as demonstrated during the civil rights era (often on the side of wickedness, but I digress).

For those following the Maryland bill, it passed the state Senate yesterday 25-22. It is widely expected to pass the assembly, and the governor has promised to sign it; however, state law makes referenda on newly-passed laws very easy, so it will not take effect until after the inevitable popular vote in 2012, which is expected to be close.

WRT impeachments: That Congress didn't impeach Jackson over the resettlement of the Cherokee, etc. pretty clearly established the precedent (in practice, if not actual law) that there are laws the president may flat out ignore.

This, I think, is a grey area. Obama hasn't said, e.g., "We have decided the medical use of marijuana is improperly prohibited, and so will refuse to federally prosecute those who have a justifiable medical need."

What they have rather said is more nuanced.

1: There is a law which they will continue to enforce.

2: They have examined it and found it constitutionally flawed.

3: He will not, as a function of properly discharging his sworn duty to "uphold and defend the constitution" cannot order his DoJ to actively attempt defend the perpetuation of this statute.

This is not the same as Bush saying, "I'll sign this law (thus giving it, because of the same thing above, his imprimatur of constitutionality), but I don't have to obey it; because I am a special snowflake, and the laws don't really apply to me.

What does it mean: It means they won't sue Arizona for refusing to recognise a marriage legally granted in Mass. to a same sex couple. They won't tell the IRS to let same sex couple to file jointly. Same sex couple don't get the tax benefits of inheritance (and why does the [i] leave heir in that word... drives me buggy all the bloody time).

They trust the trend in the courts will continue; because they believe the law is, if not wrong, not constitutional.

So, no, I don't think this is an improper use of inherent authority to enforce the laws, and set the focus of his DoJ on those aspects of the code which are more/less important.

Bush fils thought enforcement of the markets wasn't a big deal, so he pulled agents from the task forces, and cut their budgets. That was much the same as this.

Not defending DOMA when it's challenged in court is one thing. But there doesn't seme to be much point in quibbling over whether DOMA will continue to be "enforced" or not. The vast majority of harm done by DOMA is not from positive actions -- i.e., harm that wouldn't exist if the actions ceased -- but from the passive refusal to make available certain benefits. For example, if your late same-sex spouse's federal pension does not provide you death benefits, this is not because a federal agency actively came and took money from you (and could therefore simply choose not to take it) but because it declines to actively give money to you (in which case passive inaction is the current harm).

Having read Glenn Greenwald's customarily thoughtful explanation of why some folks have good grounds for being concerned about this decision, I still think there are three key factors that separate Holder's announcement from recent Republican practice.

#1. Holder and the administration are arguing for a restriction on federal power, not an expansion of it.

#2. They have a technical but clear explanation of their reasoning.

#3. Their reasoning does not involve any lying or willful refusal to acknowledge relevant precedents.

If a future Republican administration similarly wanted to rein in federal power with a justifiable bit of reasoning, I probably wouldn't have much trouble with that even if I disagreed with their chosen stance.

The OED seems to think that it's due to different words being acquired from French at different times. heir came across before the French had lost the /i/ or /y/. inherit, heritage, heritable came later.

albatross @ 60:"c. There's pretty much no way to make this into anything but a political decision that ignores the previous claims of principles."

I think that's almost certainly the case (or, alternately, the previous two years were the period of ignoring principles and making purely political decisions), but on the other hand, legal understandings aren't static, and not all constitutional claims are immediately obvious. It's possible that two years ago, the executive wanted to stop enforcing DOMA and was told there weren't grounds for that, that DoJ needed some time to build their case. Now they've built what they think is a solid case not to defend DOMA and made their announcement.

It's too bad the Obama Administration wouldn't dream of defending the law appropriately in court: "Why yes, Your Honor, the legitimate government interest in the bill was to help Newt Gingrich's Republicans pander to religious voters, and Bill Clinton signed it because of political pressure from the Monica Lewinsky and Whitewater scandals, but the Republicans decided after Bush's second election to ignore the religious voters and pander to people worried about deficit spending instead, and leave legislation about gay marriage to states which need to get Republican voters to the polls, so it may not really be a Federal issue any more, but we wanted to give you the Original Intent argument to make sure Scalia'd be happy if we have to appeal. And pandering to voters is an ancient and honorable tradition in American politics and jurisprudence and therefore this should be also covered under stare decisis." "No, Your Honor, sorry, that's the best argument we could come up with, the rest of what we had was really just smoke and we don't want to waste Your Honor's time with it, Government rests."

In my Cambridge days, some innocent young theologians set up the Cambridge University New Testament Society (In the coils of an acronym, G2, April 10). It was a refreshingly long time before anyone enlightened them.

Michael Lewis
Hull

Oh, and the fanhistorians among you might find stuff at the link on my name of interest.

and I wonder if this would have happened if a gay Republican group hadn't been invited to CPAC, to the great dismay of the "family" advocates. After all, this is definitely an administration which cares about your rights as a group proportional to what options they think you have for a better offer.

Why, I was the incorporator of the New York Metropolitan Filk Organization, or NYMFO. Not that I like the name, but that's the "cute joke" (grr) that was decided in the organizing meeting.

Fortunately, you can't write an acronym on a check unless you've filed a "Doing-Business-As" form for an alias. Reasonable abbreviations are fine, though, so we tell people to write cheques to "NY Metro Filk Org."

NYMFO runs the triennial Contata, the New York incarnation of the Floating Northeast Filk Convention, or NEFilk (pronounced any-filk).

Slight update: Apparently House Speaker Boehner has decided if the Justice Department won't defend DOMA cases, the House as a whole will come in as a third-party defendant to argue that it's ok to discriminate against gays.

Elliott Mason @77: I think the analysis in the first comment on that blogpost (from Timothy Kircher) about Boehner/ the House being allowed to attempt to defend DOMA is incredibly measured, and shows how this approach actually does fit in the way I'd like our country to work.